Travis and Weaver - [2014] FCCA 1279

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAVIS & WEAVER

[2014] FCCA 1279

Catchwords:
FAMILY LAW – Parenting of child aged 8 – high conflict between the parties – mother wishes to take child on holiday to (country omitted) and (country omitted) for approximately four weeks in July/August 2014 – father opposes overseas travel for child – father concerned holiday too disruptive for child’s school and daily routine and possibility of harm in (country omitted) – mother (country omitted) national with right of residence in Australia who is married to Australian national – matters to be considered in respect of overseas travel – assessment of possible benefits and detriments to child of proposed travel – best interests – make-up time – arrangements for handover – final orders made in August 2012 following trial – father seeks to revisit orders – application of the rule in Rice & Asplund.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 64B

Ullman v Weaver [2012] FMCAfam 871

Rice & Asplund (1979) FLC 90-725

CDJ v VAJ (1998) FLC 92-828

In the Marriage of McEnearney (1980) FLC 90-866

Bennett & Bennett (1991) FLC 92-191

SPS & PLS [2008] FamCAFC 16

King & Finneran (2001) FLC 93-079

Van Hoof & Herbert [2011] FMCAfam 1099
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hang [2010] FamCA 617

Bright v Bright (1995) FLC 92-570

Applicant:

MS TRAVIS

Respondent:

MR WEAVER

File Number:

ADC 2605 of 2011

Judgment of:

Judge Brown

Hearing date:

12 June 2014

Date of Last Submission:

12 June 2014

Delivered at:

Adelaide

Delivered on:

18 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Heinrich

Solicitors for the Applicant:

Armour & Allen

Counsel for the Respondent:

In Person

Solicitors for the Respondent:

Not Applicable

ORDERS

The mother and the child of the marriage X born (omitted) 2006 (hereinafter referred to as “the child”) be permitted to travel outside of the Commonwealth of Australia between 12 July 2014 and 9 August 2014 for the purpose of the mother and child travelling to (country omitted) and (country omitted).
The travel envisaged pursuant to order (1) hereof is subject to the following conditions:
(a)The mother take out travel insurance for the entire period of the envisaged travel with Allianz Insurance, at her own expense, with the relevant policy to have cover for the child, mother and Mr H, including overseas emergency medical assistance and evacuation, which is to be available to the mother any where in the world and at any time and include provision for repatriation to Australia for the child in the event that either the mother or Mr H becomes incapacitated to such a degree as to require hospitalisation whilst outside of Australia;
(b)The mother is provide a copy of the relevant policy of insurance to the father ten days prior to the date of her departure from Australia;
(c)The mother is to provide an itinerary of the proposed travel to the father, which is to include contact details including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Travis and Weaver

Details

AGLC: Travis and Weaver [2014] FCCA 1279
Case: [2014] FCCA 1279
Decision Date: 18 June 2014

CaseChat Overview and Summary

This matter came before Judge Brown concerning an application by the mother for permission for herself and the child of the marriage to travel outside of Australia between 12 July 2014 and 9 August 2014. The proposed travel was to visit specific overseas countries.

The court was required to determine whether to grant the mother's application for international travel for herself and the child, and if so, under what conditions. Additionally, the court considered the discharge of previous orders placing the child's name on the Airport Watch List, the suspension and variation of existing time spent with the father orders, and amendments to handover arrangements.

Judge Brown ordered that the mother and child be permitted to travel internationally as requested, subject to several stringent conditions. These conditions included the mother obtaining comprehensive travel insurance covering the child, herself, and Mr H, with specific provisions for repatriation. The mother was also required to provide the father with a copy of the insurance policy, a detailed itinerary with contact information, and to facilitate weekly communication between the child and the father via Skype. Previous orders regarding the Airport Watch List were discharged, and specific time spent with the father orders were suspended and varied to accommodate the travel period, including the child's birthday. Amendments were also made to handover arrangements and end-of-year holiday arrangements.

Orders

Orders of the court

The mother and the child of the marriage X born (omitted) 2006 (hereinafter referred to as “the child”) be permitted to travel outside of the Commonwealth of Australia between 12 July 2014 and 9 August 2014 for the purpose of the mother and child travelling to (country omitted) and (country omitted).

The travel envisaged pursuant to order (1) hereof is subject to the following conditions:

(a) The mother take out travel insurance for the entire period of the envisaged travel with Allianz Insurance, at her own expense, with the relevant policy to have cover for the child, mother and Mr H, including overseas emergency medical assistance and evacuation, which is to be available to the mother any where in the world and at any time and include provision for repatriation to Australia for the child in the event that either the mother or Mr H becomes incapacitated to such a degree as to require hospitalisation whilst outside of Australia;

(b) The mother is provide a copy of the relevant policy of insurance to the father ten days prior to the date of her departure from Australia;

(c) The mother is to provide an itinerary of the proposed travel to the father, which is to include contact details including relevant mobile telephone numbers and addresses applicable whilst the child is outside of Australia together with details of all flights to be taken by the child, including times of departure and arrival and flight numbers and carriers ten days prior to the date of her departure from Australia;

(d) The mother take all necessary steps, including travelling with an appropriately equipped computer, to enable the child to have communication with the father via Skype on two occasions each week, whilst the child is outside Australia.

Any orders previously made placing the child’s name on the Airport Watch List maintained by the Australian Federal Police at each port of international departure from Australia are discharged.

Orders 8, 9 and 15 of the orders made on 30 August 2012 are suspended from the end of term 2 in 2014 and in lieu thereof the child is to spend time with the father from after school on Friday 4 July until midday on Friday 11 July 2014, which period is to include the entirety of the child’s birthday in 2014.

Order 18 of the orders of 30 August 2012 is amended so that any handovers of the child which cannot take place at his school are to take place within the foyer of the main Adelaide police station located at (omitted), Adelaide.

Order 9 of the orders of 30 August 2014 is amended to the effect that for the end of year holiday period commencing in 2014 only, the father spend time with the child for the first four weeks of such holiday, subject to the existing arrangements for Christmas Eve, Christmas Day and Boxing Day specified in order 15 of those orders.

All extant applications be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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